United States v. Jamar Jones ( 2021 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 20, 2021
Decided October 20, 2021
Before
FRANK H. EASTERBROOK, Circuit Judge
DANIEL A. MANION, Circuit Judge
DIANE P. WOOD, Circuit Judge
Nos. 20-3219 & 20-3311
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff-Appellee, Court for the Southern District of Indiana,
Evansville Division.
v.
Nos. 3:17CR00002-001 & 3:13CR00004-001
JAMAR JONES,
Defendant-Appellant. Richard L. Young,
Judge.
ORDER
Jamar Jones pleaded guilty to conspiring to distribute methamphetamine, 21
U.S.C. §§ 841(a)(1), 846, while on supervised release for another drug conviction,
see id. § 841(a)(1). The district court sentenced Jones to 240 months’ imprisonment for
the conspiracy conviction (case number 17-cr-02) and a consecutive 24-month sentence
upon revocation of Jones’s supervised release for the earlier drug conviction (case
number 13-cr-04). Jones appeals both judgments. His appointed counsel asserts that all
Nos. 20-3219 & 20-3311 Page 2
arguments in both cases would be frivolous and moves to withdraw. See Anders v.
California, 386 U.S. 738, 744 (1967). We agree with counsel and therefore grant both
motions to withdraw and dismiss the appeals.
Jones does not have an unqualified constitutional right to counsel when
appealing a revocation order, see Gagnon v. Scarpelli, 411 U.S. 778, 789–91 (1983), so the
Anders safeguards need not govern our review. Nonetheless our practice is to follow
them. See United States v. Brown, 823 F.3d 392, 394 (7th Cir. 2016). Counsel’s brief
explains the nature of the case and addresses potential issues that an appeal like this
would be expected to involve. Because counsel’s analysis appears thorough, we limit
our review to the subjects that she discusses and that Jones raises in his response under
Circuit Rule 51(b). See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Counsel first considers whether Jones could challenge the validity of his guilty
plea for his conviction in case number 17-cr-02 and appropriately concludes that he
could not. The transcript of the colloquy reflects that the district court substantially
complied with Federal Rule of Criminal Procedure 11. See United States v. Blalock,
321 F.3d 686, 688–89 (7th Cir. 2003). The court determined that Jones understood the
charges against him, the trial and appeal rights that he was waiving, the maximum
penalties, and the role of the Sentencing Guidelines. FED. R. CRIM. P. 11(b)(1). The court
further ensured that Jones’s plea was supported by an adequate factual basis and made
voluntarily. See id. at 11(b)(2)–(3). Jones, for his part, argued at the sentencing hearing
that the prosecutor ”forced his hand” by threatening not to withdraw the government’s
information under 21 U.S.C. § 851 (proposing to increase Jones’s statutory minimum
sentence from 10 to 15 years) if he did not sign the plea agreement. But, as counsel
points out, a prosecutor’s offer of leniency in exchange for a guilty plea is not coercive if
a defendant—like Jones—is subject to increased punishment based on his prior drug
conviction. 21 U.S.C. § 841(b)(1); Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978);
United States v. Spilmon, 454 F.3d 657, 658–59 (7th Cir. 2006).
Counsel and Jones both consider whether Jones could challenge the denial of his
motion to withdraw his plea on grounds of innocence—that he had not participated in a
conspiracy to distribute methamphetamine. Jones maintains that all he did was agree to
deliver a box of what he believed was marijuana (but what turned out to be
methamphetamine). Counsel rightly concludes, however, that this challenge would be
frivolous because Jones’s denial of guilt contradicted his earlier testimony at the
change-of-plea hearing and therefore did not meet the standard of a “fair and just”
reason to withdraw his plea. United States v. Collins, 796 F.3d 829, 835 (7th Cir. 2015)
Nos. 20-3219 & 20-3311 Page 3
(internal citations omitted). In that testimony, Jones admitted under oath that he “was a
leader and supervisor of the conspiracy to distribute and possess with the intent to
distribute methamphetamine,” that he obtained methamphetamine from “sources of
supply in Arizona and Georgia” and that he distributed “pound quantities of
methamphetamine in the southwestern Indiana area to mid-level distributors.” Even
though Jones denied knowledge of delivering methamphetamine in one instance, these
sworn admissions support the district court’s finding that he was not innocent of a
conspiracy to distribute methamphetamine.
Counsel next considers whether Jones could challenge his sentence on the
conspiracy conviction but rightly concludes that his appeal waiver would foreclose any
challenge. In his plea agreement, Jones expressly waived his right to appeal “all
provisions of the guilty plea and sentenced imposed, including the length and
conditions [of] supervised release.” An appeal waiver stands or falls with the
underlying guilty plea. United States v. Nulf, 978 F.3d 504, 506 (7th Cir. 2020). As
discussed above, Jones’s plea was valid, so his appeal waiver was also valid. Counsel
also correctly rejects any argument that an exception to the waiver could apply. Jones’s
240-month sentence was less than the statutory maximum of life imprisonment, 21
U.S.C. § 841(b)(1)(A), and the court did not consider any constitutionally impermissible
factors at sentencing.
Counsel also considers challenging the district court’s authority to revoke Jones’s
supervised release (in case number 13-cr-04), which was set to expire several months
before the revocation hearing. But counsel properly regards this argument as frivolous
because an ongoing term of supervised release is tolled by pretrial detention longer
than 30 days that is later credited as time served for a new conviction, and nothing in
the record suggests that Jones was not credited for that period of pretrial detention after
his March 2017 arrest. See 18 U.S.C. § 3585(b); Mont v. United States, 139 S. Ct. 1826,
1832–33 (2019).
Counsel also asks whether Jones could challenge the revocation of his supervised
release, and correctly concludes that doing so would be frivolous. The court reasonably
found that Jones violated his supervised release condition of not committing “another
federal, state, or local crime” based on his guilty plea to conspiring to distribute
methamphetamine. See 18 U.S.C. § 3583(d), (e)(3); United States v. Flagg, 481 F.3d 946,
948–49 (7th Cir. 2007) (admission of a supervised release violation satisfied the
preponderance-of-the-evidence requirement).
Nos. 20-3219 & 20-3311 Page 4
Further, counsel considers whether Jones could challenge the length of his
sentence, and rightly concludes that he could not. The court correctly calculated a range
of 24 to 30 months’ imprisonment under the Guidelines’ Chapter Seven policy
statements, based on Jones’s criminal history category (Category IV), and grade of
violation (Grade A). U.S.S.G. § 7B1.4. Jones’s 24-month sentence falls within the policy-
statement range, so we may presume it to be reasonable. United States v. Wehrle,
985 F.3d 549, 557 (7th Cir. 2021). Nothing in the record rebuts that presumption. The
court properly addressed the applicable factors under 18 U.S.C. § 3553(a), alluding to
the seriousness of Jones’s drug offenses and the need to promote respect for the law
(“His conduct here in the courtroom today indicates that he has no remorse and does
not understand the seriousness of these offenses”), the need to protect the public from
Jones’s potential repeat offenses (“An additional 24 months will protect the public from
further crimes of the defendant”), and the beneficial effect of vocational training and
substance-abuse treatment for Jones (“I do believe the defendant is at risk of committing
further crimes unless he learns a skill or a trade or vocation and has continued
substance-abuse treatment”).
Finally, counsel correctly concludes that an argument based on ineffective
assistance of counsel would be frivolous. Such claims generally should be reserved for
collateral review, at which point the defendant may develop a full record. See Massaro v.
United States, 538 U.S. 500, 504–05 (2003).
Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.